1988 Supreme(MP) 597

IN THE HIGH COURT OF MADHYA PRADESH
V. D. GYANI, J.
Satulal - Appellant
Versus
Mandal Abhiyanta Telegraph - Respondent
C. R. No. 317 of 1985 (I)
Decided on : 23-02-1988

Headnote:(1) Accommodation Control Act, 1961 (M. P.) – S. 23 – E – revision under – findings of fact cannot be investigated.

       (2) Accommodation Control Act, 1961 (M. P.) – S. 23 – D (3) – presumption of bona fide requirement – may be destroyed even by plaintiff's own evidence.

       (3) Accommodation Control Act, 1961 (M. P.) – S. 23 – A and 23 – J (IV) – application under S. 23 – A – can be made by any landlord falling under S. 23 – J – handicapped – who is.

        Short Note

       1. This is plaintiff's revision petition under S. 23 (E) of the Madhya Pradesh Accommodation Control Act (here – in – after referred to as 'the Act').

       2. Rent Controlling Authority came to the conclusion that the petitioner had no bona fide requirement of the suit accommodation. The bona fide requirement is a question of fact and findings of fact should not be discussed in the revision unless it is shown to be a perverse finding, which is not the case. In view of the inconsistencies in evidence, and the improvements made therein conclusion reached by the Rent Controlling Authority. Cannot be said to be un – reasonable, Even if, a presumption is attached to a requirement as pleaded by the petitioner and as such presumption relates to both 'bona fide' as well as 'requirement' as contended by Shri Jain, on the basis of decision of this Court as reported in 1986, M.P.W.N. Note No. 123; Madhu Supari Company v. Smt. Ashalata. The presumption is considerably diminished, if not destroyed, by the plaintiff – petitioner's own evidence.

       3. There is no evidence for the petitioner's statement that his left foot was crushed in truck accident. There is no evidence of his being a handicapped person.

       4. In order to maintain an application under S. 23 of the Act, the petitioner has to satisfy that he is one such a person falling within the purview of S. 23 (J) of the Act. There is no such presumption established by the petitioner that he falls in any of the categories of land – lord as mentioned in S. 23 (J) of the Act, so as to claim entitlement to maintain an application under S. 23 of the Act. The questions which arise for consideration in this revision petition are, whether the petitioner on his own showing is physically handicapped person? Whether a mere cut or any injury or scarp by itself, would render a person physically handicapped, as contemplated by sub – clause (4.) of S. 23 (J) of the Act. In other words, what is true, implication of the term 'physically handicapped person' whether it would include a person, who has lost one of his fingers?

       5. The crucial question which arises for consideration in this revision petition is, whether the applicant – respondent can be said to be a handicapped person? The term 'handicap' has not been defined in the Act. It would be, therefore, safe to go by dictionary meaning of the term :

       (1) 'handicapped' : – (i) crippled or physically disabled;

       (ii) mentally 'deficient;

       (iii) (of a contestant) marked by;

       being under, or having a handicap person.

        – The Random House Dictionary of the English language

       (The unabridged Edn.)

       (2) 'handicap' : – a disadvantage that makes achievement unusually difficult, esp. a physical disability that limits the capacity to work.

        – Webster's Third New International Dictionary

       (The unabridged Edn.)

       (3) 'handicap' : – a person specially children physically or mentally defective.

        – A Supplement to the Oxford English Dictionary, (Vol. 12)

       6. As has been noted above, the term 'physically handicapped person', as occurring in Sub. S. (IV) of S. 23 – J of the Act, has not been define; by the Act..... Dictionary meaning of 'handicap' has been quoted above and some support to determine the implication of a physically handicapped person can be derived from the other Acts, such as the Workmen's Compensation Act, 1923 and S. 80 – D (1) (b) of the Income Tax Act, 1961. In the Income – tax Act, an 'handicap dependent' of an assessee is one suffering from physical or mental disablement, which is certified by a registered medical practitioner to be so. It contemplates to have the effect of reducing considerably such person's capacity for normal work and engaging in gainful employment. S. 2 (g) and S. 2 (L) of the Workmen's Compensation Act, 1923 deal with partial disablement and total disablement respectively. 'Total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workmen for all work which he was capable of performing at the time of the accident resulting in such disablement, whereas 'partial disablement' means, where the disablement is of a temporary nature and such disablement which reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident and where the disablement is of permanent nature and such disablement as reduces his earning capacity in every employment, which he was capable of undertaking at the time of the accident.

       7. The question is whether an applicant claiming to be a physically handicapped person without pleading or proving the nature and extent of his handicappedness, is entitled to an order of eviction in his favour. Innumerable cases can be conceived, where the nature of handicappedness may not have even any bearing on the nature of any vocation, trade or business, which an applicant claiming to be an handicapped person, proposes to start in an accommodation of non – residential nature, and seeks eviction of his tenant therefrom.

       8. Taking the Dictionary meaning of 'handicap', the term as used in Sub. S. (IV) of S. 23 – J of the Act, must mean something more than mere claim of being a physically handicapped person. The person so claiming must establish and satisfy the Court with regard to the nature and extent of his disablement or handicappedness and also to show as to how it has a material bearing on the need propounded by him, be it for residential or for non – residential accommodation.

       9. In the instant case, it is evident that except for the certificate, certifying a crushed foot injury, there is nothing to indicate the nature of the petitioner's disablement in carrying out the business pleaded by him. As per evidence, he is plying a truck. which would necessarily require his physical movement. It has also come in his evidence that he would carryon the business of running a lodge or a foodgrain shop through servants. There is absolutely nothing to show as to how the handicap, would materially interfere with the business activities, which he proposed to start in the suit – shop. 'Physically handicapped' as pleaded by him has nothing to do with the business that he proposes to carry out in the suit – premises.

       10. There is overwhelming evidence on record that the applicant, claiming to be a physically handicapped person, has a fairly good amount of rental income from accommodations other than the suit – accommodation, and also other trades, such as transport. Except for the word of the applicant and the evidence of the doctor, which is also self – serving in nature, there is nothing on record to determine the real nature of the applicant's physical handicappedness or disablement. 1986 (1) MPWN 123 referred to. Revision dismissed.